Citation Nr: 1526492
Decision Date: 06/23/15 Archive Date: 06/30/15
DOCKET NO. 12-14 197 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUES
1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression, to include as secondary to service connected disabilities.
2. Whether the rating reduction of the evaluation of disc protrusions at L4-L5 and L5-S1 with mass effect on the right S1 nerve root from 40 percent to 10 percent, effective July 1, 2014, was proper.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
M. D. Bruce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1997 to July 2001, and from March 2003 to July 2003.
These matters come before the Board of Veterans' Appeals (Board) on appeal from December 2008 and April 2014 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.
In April 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge with respect to the issue of entitlement to service connection for an acquired psychiatric disorder. A transcript of that hearing is of record.
The Board notes that the Veteran made an initial claim for entitlement to service connection for PTSD in April 2008, as well as a claim for entitlement to service connection for depression in April 2010. While the RO never adjudicated the issue of entitlement to service connection for depression, the Board will consider the claims together as a single claim for entitlement to service connection for an acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim cannot be considered confined to any one particular psychiatric diagnosis alone where varying diagnoses are reasonably raised by the record).
The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required.
REMAND
Service Connection
The Veteran asserts that he has a current acquired psychiatric disorder as a result of his active duty service, possibly as secondary to his service-connected disabilities. He underwent VA examination in connection with his claim in December 2010. The VA examiner diagnosed major depressive disorder and opined that it was unrelated to the Veteran's service-connected disabilities. Additionally, in an April 2011 addendum opinion, the VA examiner opined that the Veteran's major depressive disorder did not have its onset in service in June 2003, when feelings of depression were noted in a service treatment record. The VA examiner also opined that the Veteran did not meet the diagnostic criteria for PTSD at the time of the examination. Upon review, the Board finds the VA examination and opinions to be insufficient for purposes of determining service connection. The VA examiner did not address the relevant question of whether any acquired psychiatric disorder diagnosed during the pendency of the appeal is related to the Veteran's active duty service on a direct basis. Additionally, the VA examiner did not find that the Veteran had a current diagnosis of PTSD, but did not comment on the fact that the Veteran had been diagnosed with PTSD by other VA clinicians. As such, the Board finds remand is warranted in order to obtain a new examination and opinion which specifically addresses the etiology of any and all acquired psychiatric disorders diagnosed during the pendency of the appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided).
Additionally, as it appears the Veteran receives continuous treatment through VA, the Board finds the RO should obtain any VA treatment records dated from April 2015 to the present.
Rating Reduction
In June 2015, the Veteran filed a substantive appeal of an April 2014 rating decision regarding the issue of whether the rating reduction of the evaluation of disc protrusions at L4-L5 and L5-S1 with mass effect on the right S1 nerve root from 40 percent to 10 percent, effective July 1, 2014, was proper. In that appeal, he requested a videoconference hearing. Considerations of due process mandate that the Board may not proceed with review of the claim on appeal without providing the Veteran an opportunity for the requested hearing. Therefore, remand is required in this case to schedule the Veteran for a Travel Board hearing so that he may provide evidence in support of this claim. See 38 U.S.C.A. § 7107(b) (West 2014); 38 C.F.R. § 20.700(a) (2014).
Accordingly, the case is REMANDED for the following actions:
1. Obtain and associate with the record VA treatment records for the Veteran dated from April 2015 to the present. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the claims file.
2. Then, schedule the Veteran for a VA examination to determine the current nature and etiology of any acquired psychiatric disorder, to include PTSD and major depressive disorder. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA examination reports and treatment records, and with consideration of the Veteran's lay statements, the examiner should provide all diagnoses and an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current acquired psychiatric disorder began in service, was caused by service, or is otherwise related to service. In this respect, the examiner should comment on all diagnoses of record during the pendency of the appeal, including PTSD and major depressive disorder, and any other psychiatric diagnosis present or noted in the claims file.
If PTSD is diagnosed, the examiner must indicate the specific stressor or stressors that led to the PTSD.
In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it.
A complete rationale should be provided for any opinion or conclusion expressed.
3. Then, readjudicate the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, to include as secondary to service-connected disabilities, issue the Veteran and his representative a Supplemental Statement of the Case, and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review.
4. Schedule the Veteran for a videoconference hearing with respect to the issue of whether the rating reduction of the evaluation of disc protrusions at L4-L5 and L5-S1 with mass effect on the right S1 nerve root from 40 percent to 10 percent, effective July 1, 2014, was proper, in accordance with the procedures set forth at 38 C.F.R. §§ 20.700(a), 20.704(a) (2014). Following the hearing, return this claim to the Board for adjudication.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).